The High Court has refused a request by Brian and Mary Patricia O’Donnell to cross-examine two witnesses on their affidavits in proceedings concerning Gorse Hill in Killiney.
Mr Justice Brian J. McGovern delivered the judgment on 12 March 2015, following a hearing on 5 March. The Governor and Company of Bank of Ireland and Tom Kavanagh are seeking an interlocutory injunction restraining the defendants from trespassing on the premises at Vico Road, Killiney, County Dublin.
The defendants sought to question Brian O’Connor of Bank of Ireland and Mr Kavanagh of Kavanagh Fennell Limited about affidavits each had sworn on 3 March. The judge said the notice of motion seeking cross-examination was grounded on an unsworn affidavit, which could not be accepted by the court. He also considered issues raised by Brian O’Donnell in a sworn affidavit opposing the injunction application.
The judgment explains that cross-examination on affidavits in an interlocutory application is a matter for the court’s discretion. It may be allowed where factual conflicts in affidavits need to be resolved to decide the application. The court was not deciding the underlying proceedings at this stage: if they go to trial, they will be heard as a plenary action, with the plaintiffs required to prove their case through evidence and witnesses.
The judge said the matters Brian O’Donnell identified as being in controversy were for trial. For the injunction application, the plaintiffs had to meet the test in Campus Oil v Minister for Industry and Energy, and the court had to assess that question on the affidavits. It was not necessary to cross-examine either witness to decide whether the plaintiffs had made out a case for an interlocutory injunction.
The court therefore refused the defendants’ application to cross-examine Mr O’Connor and Mr Kavanagh. The judgment does not determine the underlying trespass claim or state the outcome of the injunction application itself.